Citation Nr: 9824534
Decision Date: 08/14/98 Archive Date: 07/27/01
DOCKET NO. 95-31 020 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
To be clarified.
ATTORNEY FOR THE BOARD
Keith W. Allen, Counsel
INTRODUCTION
The veteran served on active duty in the military from August
1965 to January 1969 and from June 1971 to November 1984. In
July 1993, he filed a claim for service connection for post-
traumatic stress disorder (PTSD) at the Department of
Veterans Affairs (VA) Regional Office (RO) in Buffalo, New
York. The RO denied his claim in August 1994. He appealed
to the Board of Veterans' Appeals (Board).
In his January 1995 substantive appeal (on a VA Form 9,
Appeal to the Board of Veterans' Appeals), the veteran
requested a hearing before a traveling Member of the Board at
the RO. The Travel Board hearing was scheduled for April
1997; however, on the day prior to the hearing, the veteran
contacted the RO and canceled it; he indicated he would like
to have his hearing rescheduled, and that he no longer wanted
to testify before a traveling Member of the Board, but,
instead, wanted to testify at the RO before a local hearing
officer. As to the veteran's request for a hearing at the RO
before a local hearing officer, records show the hearing was
scheduled to be held in July 1997, but, despite being
notified of the date, time and location of the hearing, the
veteran failed to report. He has not attempted to contact VA
during the months since to explain his absence, or to request
that his hearing be rescheduled. Therefore, his request for
a hearing is deemed withdrawn.
REMAND
Initially, the Board notes that a remand is necessary to
clarify the veteran's representation. In his April 1997
contact with the RO, he indicated he had retained an attorney
to represent him in his appeal. Later in April 1997, the RO
sent him a letter notifying him that he would have to
designate his power of attorney in writing before the
attorney would be officially recognized as his representative
before VA; he was provided a form to complete to make this
designation, and it was requested that he submit the form as
soon as possible, but preferably within 60 days (or, at the
latest, within 1 year). To date, however, he has not
submitted the necessary form (VA Form 22a, Appointment of
Attorney or Agent as Claimant's Representative) nor has he
otherwise designated a representative. That notwithstanding,
the Board finds that because the right to representation is
so fundamental, and given the circumstances of this case, the
RO should clarify whether the veteran, in fact, has engaged
the services of an attorney or other representative, and, if
so, give the attorney or other representative an opportunity
to submit evidence and/or argument on his behalf. See
38 C.F.R. § 20.600 (1997).
Further development also is necessary in this case to obtain
more specific information concerning the "stressors" the
veteran is alleging caused his PTSD. Service connection for
PTSD requires, not only medical evidence establishing a clear
diagnosis of the condition, but also credible supporting
evidence that the claimed inservice stressors actually
occurred, and a link, established by medical evidence,
between the current symptomatology and the claimed inservice
stressors. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10
Vet. App. 128, 137-138 (1997).
A VA psychiatrist who examined the veteran in September 1993
diagnosed PTSD. However, the remaining questions of whether
he experienced a valid stressor while on active duty in the
military (particularly, while stationed in Vietnam) to
support such a diagnosis, and whether there is competent
medical evidence linking the symptoms he is experiencing as a
result of his PTSD to the stressors he has alleged, cannot be
determined on the basis of the information he has provided
thus far.
The evidence necessary to establish the occurrence of a
recognizable stressor during service to support a diagnosis
of PTSD will vary depending upon whether the veteran engaged
in "combat with the enemy," as established by recognized
military combat citations or other official records. See
e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Doran v.
Brown, 6 Vet. App. 283, 289 (1994). If VA determines the
veteran engaged in combat with the enemy and his
alleged stressor is combat-related, then his lay testimony or
statement is accepted as conclusive evidence of the
stressor's occurrence and no further development or
corroborative evidence is required-provided that such
testimony is found to be "satisfactory," i.e., credible,
and "consistent with the circumstances, conditions,
or hardships of service." See 38 U.S.C.A. § 1154(b); 38
C.F.R. 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).
If, however, VA determines either that the veteran did not
engage in combat with the enemy or that he did engage in
combat, but that the alleged stressor is not combat related,
then his lay testimony, in and of itself, is not sufficient
to establish the occurrence of the alleged stressor.
Instead, the record must contain service records that
corroborate his testimony or statements. See Zarycki, 6 Vet.
App. at 98.
In this appeal, the evidence does not clearly establish that
the veteran engaged in combat with the enemy. His service
personnel records indicate he was stationed in Vietnam from
August 1967 to July 1968, and that his primary
military occupational specialties were telecommunications
operation specialist and maintenance systems analysis
technician (of Aerospace Weapons Systems). Although he
contends otherwise, neither position is one typically engaged
in combat. Moreover, the evidence indicates that the
military decorations he received include the Republic of
Vietnam Campaign Medal, the Republic of Vietnam Gallantry
Cross with Palm Device, and the Vietnam Service Medal with 3
Devices, none of which are among those typically recognized
by VA as indicative of service in combat, per se. See
38 C.F.R. § 3.304(f).
All of the stressors alleged by the veteran pertain to
incidents that purportedly occurred while he was stationed in
Vietnam. He claims, among other things, that his base ("Tan
Son Nhut Air Base") was repeatedly attacked by rocket and
mortar fire, especially during the first 10 days of the
TET Offensive, and that, during one of the attacks in
particular, there was substantial damage to the "barracks on
[each] side of [him]," so much so that, when he tried to
help the wounded, "there was nothing left to help" because
their bodies were virtually obliterated in the explosions.
He also alleges that Sergeants Valentino Lemoncelli, Mike
Lynch, Ken Cofer, and Bob Head were possibly "near [him] @
the worst times" in Vietnam and, therefore, may be able to
corroborate his account of traumatic events that occurred
there. He says these persons were "on duty names [he] had
to use for 12 hours at a time to do [his] job." The
veteran's mother also indicated in a September 1994 statement
that she received a telephone call in approximately February
1968, from a military correspondent in Washington, D.C.,
notifying her that the "General Westmorelands" building or
base had been hit by enemy fire in Vietnam, but that the
veteran, who apparently was in or near the building at the
time of the incident, was not hurt in the attack.
As noted by the RO, most of the stressors alleged by the
veteran appear to be the type of general feelings and
experiences that are not objectively verifiable. The Board
also emphasizes that mere presence in a combat zone or the
reporting of indirect experiences of an individual while
there are not sufficient to show that the veteran engaged in
combat with the enemy. See Collette v. Brown, 82 F.3d 389,
392 (Fed. Cir. 1996); Wood v. Derwinski, 1 Vet. App. 190, 193
(1991). However, the Board believes the veteran should be
given another opportunity to submit more specific information
concerning his alleged stressful experiences in Vietnam.
This may consist of, but is not limited to, the names of any
members of his unit (including those alluded to above) who
were involved in those experiences, or the names of soldiers
who were killed or wounded, or any other pertinent
information, such as the dates of the incidents in question,
the places where they occurred, etc. This information is
essential to substantiating the veteran's allegations. If
provided, the RO can then contact the United States Armed
Services Center for Research of Unit Records (Unit Records
Center), and any other potential source of verification that
has access to this type of information. This development is
required by the holdings of the United States Court of
Veterans Appeals (Court) in Cohen v. Brown, 10 Vet. App. 128,
137 (1997) and Zarycki, supra, and by VA Adjudication
Procedure Manual M21-1, Part VI, paragraph 7.46.
If, after obtaining a response from the Unit Records Center,
or any other department or agency that is contacted by the
RO, either the veteran's participation in combat (to which a
claimed stressful event is related), or noncombat-related
stressor is corroborated, a VA psychiatrist should be given
the opportunity to examine the veteran and determine whether
his PTSD is a result of any such in-service experiences.
See Russo v. Brown, 9 Vet. App. 46 (1996). It is critically
important that the psychiatrist or other qualified mental
health care provider who is designated to examine the veteran
on remand be given an opportunity to review all of the
relevant medical and other evidence on file, so the opinion
the VA examiner gives is a fully informed one that takes into
account the veteran's entire medical history
and circumstances. See EF v. Derwinski, 1 Vet. App. 324, 326
(1991); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991);
Waddell v. Brown, 5 Vet. App. 454, 456 (1993).
For the reasons discussed above, this case is hereby REMANDED
to the RO for the following development and action:
1. The RO should contact the veteran to
determine whether he, in fact, has
retained an attorney or other
representative. If an attorney or
representative is identified, the RO
should forward to him or her a copy of VA
Form 22a or any other appropriate form
for designation purposes, and provide a
sufficient opportunity for presentation
of evidence/argument in the veteran's
behalf.
2. The RO should request the veteran to
provide a comprehensive statement
containing as much detail and information
as possible concerning the specifics
(i.e., the who, what, when and where
facts) of the stressors which he alleges
to have experienced while in the
military-but particularly, while
stationed in Vietnam during the war. It
is essential that his statement includes
a full, clear and understandable
description of the events in question,
and that it contains identifying
information concerning any other
individuals who purportedly were
involved. The veteran must specify
whether any of the individuals that he
identifies were wounded or killed in
Vietnam, whether he personally witnessed
their injuries or death, or learned of
their tragedies through other means, and
whether any of them have other
information that could corroborate
his allegations of stressful experiences
in Vietnam. When identifying these
individuals, the veteran must provide
their full names, ranks, and unit
designations to the company level. He
also must provide any information he has
concerning other units that were
involved, or any other identifying detail
such as the best estimate of the date
that the alleged incidents occurred, and
the type and location of the incidents,
etc., including the hostile and frequent
rocket and mortar attacks that he
suggests he experienced (at "Tan Son
Nhut Air Base" where he was stationed)
during the first 10 days of the TET
Offensive-which, if true, would have
been during the latter part of January
1968 until the early part of February
1968. Also relevant is the information
that was provided in the statement from
his mother concerning a telephone call
she purportedly received in approximately
February 1968 from a military
correspondent in Washington, D.C.,
notifying her that the "General
Westmorelands" building or base had been
hit by enemy fire in Vietnam, but that
the veteran, who apparently was in or
near the building at the time of the
incident, was not hurt in the attack.
The veteran is hereby informed that the
Court has held that asking him to provide
underlying facts, such as the names of
the individuals involved or the dates and
the places where the claimed events
occurred, does not constitute either an
impossible or onerous burden. Wood,
1 Vet. App. at 193.
2. If it is determined the veteran has
submitted sufficient information to
conduct a meaningful and worthwhile
search for evidence to corroborate his
allegations that he engaged in combat in
Vietnam, and that he had stressful
experiences while there, then the RO
should do so through all appropriate
means, including, but not limited to,
contacting the National Archives and
Records Administration (NARA)
and the United States Armed Services
Center for Research of Unit Records
(Unit Records Center) at 7798
Cissna Road, Suite 101, Springfield,
Virginia, 22150. This may require that
the RO first obtain morning reports
and/or similar types of clarifying
evidence from the National Personnel
Records Center (NPRC), or from similar
sources, and that the RO submit this
information with any that is provided by
the veteran, or others acting on his
behalf, for consideration.
3. Following receipt of a response from
the Unit Records Center, or any other
entity that is contacted, the RO should
prepare a report detailing the nature of
any combat action (to which a purported
stressor is related) and/or noncombat-
related stressor(s) that it has
determined are established by the record.
This report is then to be added to the
claims file. If no combat action
(referred to above) or noncombat-related
stressor has been verified, then the RO
should so state in its report, skip the
development requested in paragraphs 4 and
5, and proceed with the development
requested in paragraph 6.
4. After the above development is
completed, the veteran should be examined
by a psychiatrist to determine whether it
is at least as likely as not that his
PTSD is a result of a stressor that
occurred coincident with his service in
the military. Towards this end, the RO
should provide to the examiner the report
described in paragraph 3, above, and the
examiner must be instructed that only the
corroborated combat action/stressor(s)
referred to therein may be considered for
the purpose of determining whether
exposure to an in-service stressor has
resulted in the current psychiatric
symptoms. Assuming a diagnosis of PTSD
is deemed appropriate, then the examiner
should explain how the diagnostic
criteria of the DSM-IV are met, to
include identification of the specific
stressor(s) underlying the diagnosis, and
comment upon the link between the current
symptomatology and one or more of the in-
service stressors found to be established
by the RO. Similarly, if a diagnosis of
another type of psychiatric illness is
deemed appropriate, whether in lieu of or
in addition to PTSD, the examiner should
explain the basis for the diagnosis, as
well as comment upon the relationship, if
any, between that diagnosis and PTSD.
It is imperative that the claims folder,
containing all evidence relevant to the
case (including a copy of this REMAND),
be provided to the VA psychiatrist who is
designated to examine the veteran, so
that the examiner can review the
veteran's pertinent medical history and
circumstances. The report of the
examination must include the rationale
underlying all opinions expressed,
citing, if necessary, to specific
evidence in the record. The report
should be associated with the other
evidence on file in the veteran's claims
folder.
5. The RO should review the report of
the examination to ensure that it
addresses all issues and concerns that
were noted in this REMAND. If the report
does not contain sufficient information
in any critical respect, then it should
be returned as inadequate, and any
necessary additional information
included. See 38 C.F.R. § 4.2.
6. The RO should thereafter review the
veteran's claim for service connection
for PTSD, on the basis of all pertinent
evidence of record. The RO should
provide adequate reasons and bases for
its decision, citing to all governing
legal authority and precedent, and
addressing all issues and concerns that
were noted in this REMAND. If the
benefits requested by the veteran
continue to be denied, then he, and his
representative, if any, should be
furnished a supplemental statement of the
case and given an opportunity to submit
written or other argument in response
thereto before his case is returned to
the Board for further appellate
consideration.
The purpose of this REMAND is accomplish additional
development, and it is not the Board's intent to imply
whether the benefits requested should be granted or denied.
The veteran need take no action until otherwise notified, but
he may furnish additional evidence (to include any supporting
statements from his former service comrades) and/or argument
while the case is in remand status. See Colon v. Brown, 9
Vet. App. 104, 108 (1996); Quarles v. Derwinski, 3 Vet. App.
129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
The Unit Records Center was formerly known as the United States Army and Joint Services Environmental
Support Group (ESG).
Now included in Manual M21-1 in Part IV, Paragraph 11.38(f) (Change 61, September 12, 1997) and in
Part III, Paragraph 5.14(b) (Change 49, February 20, 1996).